Right-wing media figures are exalting Fifth Circuit U.S. Court of Appeals Judge Jerry Smith for his demand that the Department of Justice explain comments President Obama made about the Supreme Court's review of the health care reform law. However, legal scholars argue that the judge's request was "highly inappropriate" and "uncommonly silly."

Judge Smith Challenges Obama Administration On Judicial Review

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

[...]

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, suggesting it wasn't clear whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."

[...]

And now DOJ gets to write three single-spaced pages expounding on that. Due at high noon on Thursday. [CBS News, 4/3/12]

Fox's Greta Van Susteren: "I've Never Seen Anything Like This." On the April 3 edition of her Fox News show, Greta Van Susteren criticized Smith's order, saying, "I've never seen anything like this." She added:

VAN SUSTEREN: [I]t really is beyond what is necessary in the case. It has nothing to do with the case. And the lawyer answered the question in court. And it's clearly just, you know, the judge is mad. And to refuse to do it, maybe you draw a contempt charge, but I would then take it up with the full court. I'm not so sure that the Department of Justice has to comply with this. [Fox News, On The Record with Greta Van Susteren, 4/3/12]

Van Susteren: The Judiciary Is "Reaching Beyond The Courtroom." On her show the next day, Van Susteren added:

VAN SUSTEREN: Look, the president started it. I am totally behind it. The president was wrong legally. I'm totally -- you know, I'm totally in agreement with that. But the problem is that the judiciary is reaching beyond the courtroom, beyond -- when they got the answer from that Justice Department lawyer in order to get into a little bit of a schoolyard brawl with the Justice Department. And frankly, I think that it should be ended here. And I don't think the pres-- I don't think the attorney general should respond. And I think that should be the end of it. [Fox News, On The Record with Greta Van Susteren, 4/3/12; 4/4/12]

Fox's Chris Wallace: "I Think The Judge Should Have Stayed Out Of It." On Fox & Friends, Fox News Sunday host Chris Wallace responded to the controversy by saying of Obama, "I don't know it was a mistake to take on the Court. ... Lord knows conservatives have taken on the Court over the years and it hasn't been bad for them." He added:

WALLACE: I think the judge should have stayed out of it. It seemed to me he was looking for a fight. It wasn't coming up in his case. It wasn't about -- his case didn't involve this -- the striking down of the individual mandate. It was a health care case, but a different one. And look, there are separate branches, and I just don't know why he decided to wade into it. [Fox News, Fox & Friends, 4/6/12]

Law Professor Orin Kerr: Smith's Order "Makes The Judges Look Like Political Actors." On his blog, George Washington University Law professor Orin Kerr wrote:

If this story turns out to be accurate, it strikes me as extraordinarily embarrassing to the federal judiciary. But I want to hear the oral argument audio first, or at least get some more confirmation as to what happened, before reaching a firm conclusion.

[...]

Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ's position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn't help anyone. [The Volokh Conspiracy, 4/3/12]

Law Professor Steven Schwinn: "Uncommonly Silly Order" That "Undermin[ed] The Credibility And Seriousness Of The Federal Courts." John Marshall Law School professor Steven D. Schwinn stated:

This is an uncommonly silly order--serving no legitimate purpose, interfering with separation of powers, and undermining the credibility and seriousness of the federal courts (or at least the Fifth Circuit)--and the DOJ would do well to ignore it. The President's statements the other day were plainly not a challenge to the idea of judicial review; they were simply a statement of the administration's constitutional position on the ACA, already articulated by the SG at oral argument and repeatedly stated by the administration and the President himself in other contexts. [Constitutional Law Prof Blog, 4/4/12]

Former Clerk To Justice Antonin Scalia: "Federal Judges Are Supposed To Be Above That." In an interview with Talking Points Memo, Brian Fitzpatrick, a professor at Vanderbilt University School of Law and a former clerk to Justice Antonin Scalia, said this was something federal judges "are supposed to be above":

"I find all of this a bit incredible," said Brian Fitzpatrick, a professor at Vanderbilt University School of Law and former clerk to Justice Antonin Scalia.

[...]

"The president was being cute in his statements," Fitzpatrick said. "I don't think he really believes courts ought to defer to the political branches. But the president is a politician. He's allowed to be cute. Federal judges are supposed to be above that. I suppose that's what we get for giving them life tenure." [Talking Points Memo, 4/4/12]

Law Professor Robin Effron: Smith's Conduct "Raises Several Difficult Issues Of Judicial Behavior And Appellate Litigation." Brooklyn Law School Professor Robin Effron wrote of Smith's request:

I must say that as troubled (and annoyed) as I was by Obama's comments on Monday, I was shocked by this exchange. It raises several difficult issues of judicial behavior and appellate litigation.

First, Obama's remarks were not part of the record before the court. Judge Smith's request dips into the murky area of what sources of authority judges may consult when reviewing the facts of a case or deciding on the law.

[...]

Second, the exchange calls into question Judge Smith's impartiality in this matter. Because while President Obama--a member of a political branch of government--has the right and perhaps sometimes the obligation to take partisan stances on issues, Judge Smith is a member of the judiciary who should theoretically be above the fray. [PrawfsBlawg, 4/4/12]

But Right-Wing Media Celebrated The Move

Fox's Kimberly Guilfoyle: "I'm Glad That [The Court] Is Stepping Up Like This." On Fox Business' Lou Dobbs Tonight, Fox legal analyst Kimberly Guilfoyle said she was "glad" that the court is demanding an opinion from the Justice Department:

GUILFOYLE: Yes, somebody got a little judicial spanking there, didn't they? I mean, it's really inappropriate, the comments that he made, and then Eric Holder tried to kind of spin it. But, basically, the time is up. They're going to have to come up with a response. But that's just showing that the courts are a little bit tired of being badmouthed. They have a serious job to do.

They have every right to review this legislation and decide whether or not it is in fact constitutional and whether or not the administration has usurped the powers by putting in something that is not constitutionally approved. And instead, they sit there and mock the court and say that it's partisan politics. I'm glad that they're stepping up like this, and the court is saying give us an opinion on this. [Fox Business, Lou Dobbs Tonight, 4/4/12]

JOHNSON: I think it's appropriate in this case. Any appellate court has the right to ask for additional briefs. But what you've seen here is the White House get caught red-handed -- the president get caught red-handed -- trying to subvert the Constitution. And I hate those kind of overblown statements, but, unfortunately, in this case it's true. [Fox Business, Lou Dobbs Tonight, 4/4/12]

MALKIN: Now we've got the Fifth Circuit assigning homework not only to Obama, but, of course, to all of his lawyer minions at the Justice Department and with the Attorney General's office. And they'll be scrambling to meet this high noon deadline. It is a humiliating spanking for the Obama administration, and it's about time.

[...]

MALKIN: They know how this administration operates, and now they're making them pay a price. And I think it's a good thing. [Fox News, Hannity, 4/4/12]

Rush Limbaugh: "In My View, This Judge Is Very Brave." On his radio show, Rush Limbaugh stated:

LIMBAUGH: In my view, this judge is very brave. The One is going to look at this as insolence. Obama is going to look -- "how dare he?" "How dare he challenge me publicly like this? How dare he embarrass me? How dare this judge lift his hand up to me?" That's going to be the reaction. This judge has now made himself a target of the regime. We may never know how the regime decides to take action against this judge. [Premiere Radio Networks, The Rush Limbaugh Show, 4/4/12]

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